Cohen v. City of Alameda

HARRISON, J. The city of Alameda instituted proceedings April 33, 1894, under the provisions of the act of March 6, 1889 (Stats. 1889, p. 70), for opening and extending Lincoln avenue from its western terminus, as then laid out, to the eastern line of Versailles avenue, by passing a resolution of its intention to do so, describing the land deemed necessary to be taken therefor, and also specifying the exterior bounds of the district to be affected and benefited by said improvement. After passing the order for the improvement, commissioners to assess benefits and damages accruing therefrom were appointed, who afterward made and filed a report of their assessment, accompanying the same with a plat of the assessment district, showing.the lands to be taken for the improvement and also the lands assessed therefor. The entire cost of the improvement was assessed upon one hundred and twelve separate parcels of land within the assessment district. This report and assessment was afterward approved and confirmed by the city council, and a certified copy thereof delivered to the superintendent of streets, who caused To be published a public notice thereof, and calling for the payment of said assessments. The assessments, not having all been paid within the time limited in said notice, the superintendent of streets advertised the same as delinquent, and published a notice that on a certain day he would sell the land assessed in satisfaction thereof. Vine of the lots so assessed are owned by the four plaintiffs herein, and they instituted the present action to enjoin the sale threatened by the superintendent, and to have the assessment declared void. Judgment was rendered in the superior court in favor of the defendants, from which, and also from an order denying a new trial, the plaintiffs have appealed.

[5061]. The constitutionality of the act of March 6, 1889, was fully considered by this court and upheld in Davies v. Los Angeles, 86 Cal. 37. Norwood v. Baker, 173 U. S. 269, cited by the appellants, arose under a statute radically differing from the above act. In that case the ordinance under which the improvement was made provided that the entire expense thereof should be assessed “by the front foot” upon the lands abutting upon the portion taken for the street. The land taken for the street, as well as all of the land assessed, was owned by the same person, and in accordance with the ordinance the entire cost of the improvement, including the value of the land taken, together with the cost and expense of the condemnation proceedings, were assessed against other portions of the tract of land through which the street was opened belonging to the same owner as that taken for the street and abutting upon the street, as opened, at an arbitrary rate per front foot, without regard to the benefits accruing to the lands assessed. In the present case the commissioners appointed to make the assessment reported that their assessment upon the lands within the district had been made by them in proportion to the benefit to be derived from the improvement, and this report and assessment was afterward confirmed by the city council without any objection thereto so far as appears from the record herein. The plaintiffs herein do not complain of the correctness of the amount awarded for the land to be taken, nor do they claim that the cost of the improvement has not been equitably apportioned upon the lands assessed therefor, or that their lands have not been benefited to the extent of the assessment thereon.